2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 8 - Offenses Involving Theft
Article 1 - Theft
§ 16-8-3. Theft by Deception

Universal Citation: GA Code § 16-8-3 (2020)
  1. A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.
  2. A person deceives if he intentionally:
    1. Creates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false;
    2. Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed;
    3. Prevents another from acquiring information pertinent to the disposition of the property involved;
    4. Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record; or
    5. Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection.
  3. "Deceitful means" and "artful practice" do not, however, include falsity as to matters having no pecuniary significance, or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.

(Code 1933, § 26-1803, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U.L. Rev. 537 (1993). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Larceny After Trust
  • Contracts to Perform Services
  • Deceitful Representation of Existing Fact or Past Event
  • Failure to Correct False Impression
  • Application
  • Jury Charges
  • Punishment

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions decisions under former Penal Code 1910, §§ 703, 719 and former Code 1933, §§ 26-3918, 26-7408, 26-7409, and 26-7410, as they read prior to revision of the title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.

Intent to defraud is gist of offense. McElmurray v. State, 76 Ga. App. 604, 47 S.E.2d 139 (1948) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

It must be shown that victim defrauded as result of scheme and device to defraud. Cohen v. State, 101 Ga. App. 23, 112 S.E.2d 672 (1960) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Essential requisites in offense of cheating and swindling by false representations are: (a) that the representations were made; (b) that they were knowingly and designedly false; (c) that they were made with intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing fact or past event; (f) that the party to whom the false statements were made, relying on their truth, was thereby induced to part with the party's property. It is incumbent upon the state to prove all of these elements of the offense; and if any one is lacking in the proof, the offense is not made out. Diamond v. State, 52 Ga. App. 184, 182 S.E. 813 (1935) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410); Chandler v. State, 80 Ga. App. 550, 56 S.E.2d 794 (1949) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Purpose of Code section.

- Former Code 1933 (see now O.C.G.A. § 16-8-3) had as its purpose solely the punishment of fraud, and not the creation of a remedy for the collection of debts or the compelling of the performance of contracts. Bullard v. State, 60 Ga. App. 33, 2 S.E.2d 725 (1939) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Purpose of this law is not to enforce the contract to perform services, but to punish the fraudulent procurement of money, or other thing of value, under the contract. Banton v. State, 57 Ga. App. 173, 194 S.E. 827 (1938) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Offense declared in present O.C.G.A. § 16-8-3(b)(5) is not for failure to perform service or pay debts, but for fraudulently procuring money or other thing of value. Bullard v. State, 60 Ga. App. 33, 2 S.E.2d 725 (1939) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

No representation to person defrauded is necessary.

- Any deceitful means or artful practice may embrace either false and fraudulent representations, or other deceitful and fraudulent conduct which cheats and defrauds the prosecutor. In other words, one may be guilty of cheating and swindling although one made no representation whatever to the person defrauded. Hadden v. State, 73 Ga. App. 23, 35 S.E.2d 518 (1945) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Effect of whether or not ownership passes with possession of goods.

- If one, meaning to steal another's goods, fraudulently prevails on the latter to deliver them to the person, under the understanding that the property in them is to pass, the person commits neither larceny, nor any other crime, by the taking, unless the transaction amounts to an indictable cheat; but if, with the like intent, the person fraudulently gets leave to take the possession only, and takes and converts the whole to self, the person becomes guilty of larceny, because, while the person's intent is thus to appropriate the property, the consent, which the person fraudulently obtained, covers no more than the possession. Thompson v. State, 67 Ga. App. 240, 19 S.E.2d 777, cert. denied, 317 U.S. 667, 63 S. Ct. 72, 87 L. Ed. 536 (1942) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

If by fraud (deceitful means and artful practice) a person is induced to part with the person's goods, meaning to relinquish the person's property in them as well as possession, the person who thus obtains them may be chargeable with a cheat at the common law or under the statutes against false pretenses, yet not with larceny, because, it is assumed, the owner having actually consented to part with ownership, there was no trespass in the taking; but this doctrine refers only to cases in which the ownership of the goods is meant by the owner, to pass with them. Thompson v. State, 67 Ga. App. 240, 19 S.E.2d 777, cert. denied, 317 U.S. 667, 63 S. Ct. 72, 87 L. Ed. 536 (1942) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

If the one consents to part with merely possession, another who takes them intending a theft goes beyond the consent, and irrespectively of the question of fraud commits larceny. Thompson v. State, 67 Ga. App. 240, 19 S.E.2d 777, cert. denied, 317 U.S. 667, 63 S. Ct. 72, 87 L. Ed. 536 (1942) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Pecuniary loss is essential element.

- It is essential to the legality of a conviction for cheating and swindling that the person alleged to have been defrauded and cheated shall have sustained some pecuniary loss. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403 (1936) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410); Wilson v. State, 84 Ga. App. 703, 67 S.E.2d 164 (1951) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

When a defendant was accused of obtaining a settlement on a false tort claim from a corporation, which settlement was actually paid by the corporation's insurer, it was inferable that the company paid the insurance carrier premiums to pay the company's losses, and that these premiums were "jumped up" at the end of the year in accordance with the injuries settled for. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403 (1936) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

When a debtor executes to two creditors separate mortgages to secure debts due to them respectively, and it appears that in procuring the credit to secure which the last mortgage was executed the debtor represented to the mortgagee that the property mortgaged was unencumbered, such misrepresentation cannot be made the basis of a prosecution under former Code 1933 unless it be shown that in consequence thereof the second mortgagee has been in fact defrauded, and that in extending the credit upon the faith of such misrepresentation the second mortgage has sustained a loss. Daniel v. State, 63 Ga. App. 12, 10 S.E.2d 80 (1940) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Evidence showing that the prosecutor who paid the defendant's note to the bank received security therefor, and failing to show that such security was not sufficient to cover the prosecutor's loss, is insufficient to support a verdict of guilty. Wilson v. State, 84 Ga. App. 703, 67 S.E.2d 164 (1951) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

When the evidence merely shows that representations were made by the defendant that defendant owned certain property and that it was unencumbered by mortgages or liens, and upon the faith of these representations a mortgage was taken when in fact there was a valid recorded mortgage on the same property, this alone does not prove loss, for if both mortgages were foreclosed, the property sold at public outcry, it might bring more than the amount of both debts for which the mortgages were given to secure. Daniel v. State, 63 Ga. App. 12, 10 S.E.2d 80 (1940) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Fraud in the payment of a preexisting debt cannot be made the foundation of a charge of cheating and swindling where such fraud does not deprive the prosecutor of any right, property, money or other thing of value. Wilson v. State, 84 Ga. App. 703, 67 S.E.2d 164 (1951) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Evidence that the defendant and another individual approached the prosecutor, and by making false and fraudulent representations as to the solvency of a certain corporation and the value of its stock when in fact, the stock had no value, as defendant should have known, induced the said prosecutor to exchange merchandise of the value of $4,800.00 for 200 shares of stock, thus defrauding the prosecutor out of that sum of money, was sufficient to support a conviction under the provisions for cheating and swindling. Thrailkill v. State, 103 Ga. App. 189, 118 S.E.2d 837 (1961) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Victims' pecuniary loss not required.

- Even though bank ultimately sustained no monetary loss, the defendant's conviction for theft by deception and attempted theft by deception was sustained. Bishop v. State, 223 Ga. App. 422, 477 S.E.2d 422 (1996).

Proof of ownership as element of crime.

- When there is no proof that the victim, at the time of the commission of the offense charged, was the legal owner of the money or that the victim was in the "technical possession" of the property or that the victim had such a special interest in the property as would sustain a finding of ownership, the proof does not conform with an essential allegation of this offense and the variance is fatal. Henley v. State, 59 Ga. App. 595, 2 S.E.2d 139 (1939) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Civil fraud and theft by deception have different elements and showing that there are jury issues as to fraud does not necessarily show that there are jury issues as to theft by deception; a failure to show the level of intent needed for proving theft by deception would preclude a jury issue on that crime as a predicate act for RICO purposes, defeating a RICO claim. Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 448 S.E.2d 737 (1994).

It was error to charge the jury with language from O.C.G.A. § 16-8-3 in a civil action involving the misappropriation of assets in connection with the sale of an accounting firm. Crews v. Wahl, 238 Ga. App. 892, 520 S.E.2d 727 (1999).

Theft by deception and civil fraud have different elements and are not necessarily proved by the same evidence; thus, for purposes of RICO, the absence of civil fraud does not mean also the absence of criminal fraud, i.e., theft by deception. Willis v. First Data Pos, Inc., 245 Ga. App. 121, 536 S.E.2d 198 (2000).

No private right of action.

- In a declaratory judgment case in which three intended beneficiaries alleged that an insurance company violated O.C.G.A. §§ 16-8-2,16-8-3, and16-8-4, those criminal statutes did not create a private cause of action. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).

Mortgage borrower could not bring civil claims against a loan servicer under O.C.G.A. §§ 16-8-2,16-8-3, and16-8-4, which were criminal statutes prohibiting theft by taking, by conversion, and by deception; the statutes did not purport to create a private cause of action. Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366 (N.D. Ga. 2012).

In a case in which a car buyer appealed a district court's entry of summary judgment in favor of a lender, the Georgia criminal statutes for trespassing and theft, O.C.G.A. §§ 16-7-21,16-8-2, and16-8-3, did not expressly provide for a civil remedy and, thus, a civil remedy could not arise from a violation of those statutes. Goia v. Citifinancial Auto, 499 Fed. Appx. 930 (11th Cir. Dec. 3, 2012)(Unpublished).

Fraudulent transfer not predicate act under RICO.

- Trial court erred by failing to dismiss the plaintiff's claim for theft as a predicate offense under the Georgia RICO statute because a fraudulent transfer was not an enumerated predicate offense under the Georgia RICO statute, but instead, a civil tort governed by the Uniform Voidable Transactions Act, O.C.G.A. § 18-2-70. Z-Space, Inc. v. Dantanna's CNN Center, LLC, 349 Ga. App. 248, 825 S.E.2d 628 (2019).

Civil liability for damages.

- Plaintiff failed to plead a claim to recover damages for conversion under O.C.G.A. § 51-10-6 based on a violation of two criminal statutes - theft by conversion of payments for property improvements and theft by taking - as the plaintiff did not allege any of the necessary elements to establish the violations and did not allege that the defendant was charged with or found guilty of a violation of those statutes. Harlander v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).

Violation of criminal statute did not automatically give rise to civil liability.

- Trial court erred in denying the defendants summary judgment on the claims alleging that the defendants committed the criminal offenses of theft by taking, theft by deception, and theft by conversion because the violation of a penal statute did not automatically give rise to a civil cause of action on the part of one who was injured thereby and the plaintiff made no showing that the alleged penal violations gave rise to civil liability. McCalla Raymer, LLC v. Foxfire Acres, Inc., Ga. App. , 846 S.E.2d 404 (2020).

Former laws distinguished.

- Even though O.C.G.A. § 16-8-3 evolved from former cheating laws, there are significant differences between them and the trial court did not err in refusing to charge the jury on its elements of the offense under former laws. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

State court had jurisdiction over prosecution of defendant charged with theft by deception involving nine checks, each written for less than $280. Cartwright v. State, 229 Ga. App. 385, 494 S.E.2d 99 (1997).

Benefit to defendant not required.

- State was not required to show that the defendant's received a benefit in a prosecution of theft by deception. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

Defendant cannot avoid conviction because a portion of representations may not have been criminal since the representatives were made in connection with other representations which were found by the jury to have been criminal. Cross v. State, 126 Ga. App. 346, 190 S.E.2d 561 (1972).

Part of inducements not deceptive.

- Inducement relied upon for conviction need only be a part of the inducements under which the defrauded person parted with money. Ray v. State, 165 Ga. App. 89, 299 S.E.2d 584 (1983).

Victims' lack of diligence no defense.

- Bank's failure to follow the bank's own procedures in holding out-of-town checks afforded no defense to a defendant prosecuted for theft by deception and attempted theft by deception in a check kiting scheme. Bishop v. State, 223 Ga. App. 422, 477 S.E.2d 422 (1996).

"Services" construed.

- Obligation to install carpeting, being part of one inseparable agreement along with the carpet's sale, constituted "services" within the purview of former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3). Cross v. State, 126 Ga. App. 346, 190 S.E.2d 561 (1972).

Claim for future payment.

- Defendant's convictions of two counts of theft by deception, O.C.G.A. § 16-8-3, had to be reversed; the defendant's claims that the defendant would have money in the future to cover checks written for two vehicles bore on future performance and were not actionable as theft by deception; however, the defendant's convictions on two other counts of theft by deception were affirmed as the defendant's acts of obtaining money from a victim by creating the impression that the money was to be used to buy a vehicle in which ownership would be shared and agreeing to perform roofing work which the defendant had no intention of completing constituted theft by deception. Brady v. State, 267 Ga. App. 351, 599 S.E.2d 313 (2004).

Simultaneous employment by two companies.

- Evidence was insufficient to support defendant's conviction on charges that the defendant had obtained wages from two employers through the creation of a false impression of fact since the evidence did not establish that the defendant's employment with either of the two companies in question had been conditioned on any express promise or representation by the defendant to the effect that the defendant would work exclusively for those companies and both employers denied that the defendant had received any compensation to which the defendant was not entitled. Wilburn v. State, 201 Ga. App. 61, 410 S.E.2d 321 (1991).

Former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3) did not provide for imprisonment for debt. Clontz v. State, 140 Ga. App. 440, 231 S.E.2d 454 (1976).

Sufficiency of indictment.

- When an indictment for cheating and swindling and not a presentment is being considered, it is not necessary that the very words of the pretense be set out; it is sufficient to state the effect of the pretense correctly; hence the indictment need not allege whether the pretense was spoken or written. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403 (1936) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

When the allegation is that a corporation was defrauded, or attempted to be defrauded, it is sufficient to set out the name of such corporation, without designating any particular individual, officer, or agent of such corporation to whom the representations or false pretenses were made. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403 (1936) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

While it is necessary in an indictment to allege the ownership of the moneys obtained, yet if, from the allegations of the indictment as a whole, it is clearly inferable to whom the money belonged, the absence of an express allegation to that effect is no reason for quashing the indictment. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff'd, 184 Ga. 164, 190 S.E. 582 (1937) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Indictment which alleges that the defendant conspired with others to defraud and cheat a named corporation by falsely representing that another person was injured by the agents of such corporation, and thereby did cheat and defraud that corporation, states the offense of cheating and swindling. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff'd, 184 Ga. 164, 190 S.E. 582 (1937) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

When it was consistent with the language of an indictment charging the defendant with cheating and swindling that there was not a false representation of an existing fact, but only a false estimate of the value of certain used cars, accounts, and notes, on the basis of which a third party was induced to lend defendant money, the statement of such an erroneous opinion, even if untrue or false, would not sustain the indictment. Carr v. State, 60 Ga. App. 590, 4 S.E.2d 500 (1939) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Variance in a specific allegation which referred to the manner in which the offense was committed would be fatal. Farmer v. State, 208 Ga. App. 198, 430 S.E.2d 397 (1993).

It was not necessary to note any corporate involvement on an indictment because, whether or not the defendant acted on the defendant's own behalf or on behalf of the defendant's alleged corporation or both, the defendant could be convicted of theft by deception by defendant's deceitful representations. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

Indictment alleging that $250,000 loan was in "lawful currency" when in fact the amount was given to the defendant in the form of a check was not fatally defective. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

Trial court erred in quashing an indictment for counts of residential mortgage fraud, in violation of O.C.G.A. § 16-8-102, and counts of felony theft by deception, in violation of O.C.G.A. § 16-8-3, because: (1) certain allegations between counts in the indictment were mere surplusage and did not invalidate the indictment; (2) the indictment was not duplicitous under O.C.G.A. § 16-1-7(a)(2); (3) the indictment was sufficient pursuant to the requirements of O.C.G.A. § 17-7-54(a) to withstand general and special demurrers as each count sufficiently stated the offense; and (4) each count was sufficient to charge each of the named defendants as either the actual perpetrator or as a party to the crime pursuant to O.C.G.A. §§ 16-2-20(a) and16-2-21. State v. Corhen, 306 Ga. App. 495, 700 S.E.2d 912 (2010).

Theft by deception as lesser included offense of robbery by sudden snatching.

- In a prosecution for robbery by sudden snatching, where the evidence showed that defendant took cigarettes from the counter while the store clerk was distracted and did not show that the clerk was fraudulently induced to part with the cigarettes, the trial court's failure to give requested charge on theft by deception was not error. King v. State, 214 Ga. App. 311, 447 S.E.2d 645 (1994).

Venue.

- In a prosecution for theft by deception, venue was proper where the evidence showed that defendant's agent obtained a check for defendant in the forum county at the defendant's direction and subjected it to defendant's control. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

Evidence was sufficient to establish venue in Hall County for a theft by deception charge because a witness testified that at the defendant's request, the witness placed a check in the mailbox at a rental house, and that occurred the same day the defendant cashed the check; the police officer who responded to the witness's call testified that the house was located in Hall County. Forrester v. State, 315 Ga. App. 1, 726 S.E.2d 476 (2012).

Defendant's conviction for theft by deception, in violation of O.C.G.A. § 16-8-3, was reversed because no evidence was presented that the defendant had exercised control over the wire transfer funds in Morgan County, Georgia, where the trial was had on the charge. Davis v. State, 322 Ga. App. 826, 747 S.E.2d 19 (2013).

State's burden of proof.

- When one is indicted for cheating and swindling by false representation as to one's ownership of a large quantity of a certain class of goods, a part of which one seeks to sell and does sell, for future delivery, collecting the purchase price and afterwards failing to deliver the quantity of goods sold, the state carries the burden of proving, not only that the representation was made substantially as alleged in the indictment, but also that it was falsely and fraudulently made. Ray v. State, 44 Ga. App. 763, 162 S.E. 861 (1932) (decided under former Penal Code 1910, §§ 703, 710).

Merger.

- Evidence supported the trial court's judgment that the defendant committed felony theft by deception when the defendant lied about obtaining a bank loan so the defendant could purchase three pieces of equipment, took the equipment from the owner to have it inspected, and kept the equipment without paying for it. However, the trial court erred when it convicted defendant of three counts of felony theft by deception because, although each piece of equipment was worth more than $500, the same evidence was used to prove all three counts and the counts merged, as a matter of fact, into one offense. Pettiford v. State, 265 Ga. App. 874, 595 S.E.2d 673 (2004).

No merger with securities violations.

- Trial court did not err in failing to merge the theft by conversion counts under O.C.G.A. § 16-8-3, and the securities violation counts under O.C.G.A. § 10-5-12 filed against the defendant because the state had to prove separate facts to find the defendant guilty of the theft by conversion offenses and the violations of the Georgia Securities Act, O.C.G.A. § 10-5-1 et seq. Furthermore, the securities violation counts were complete before the theft conversion occurred. Lavigne v. State, 299 Ga. App. 712, 683 S.E.2d 656 (2009).

No merger when multiple thefts from same victim.

- In a prosecution for theft by deception, O.C.G.A. § 16-8-3, the trial court did not err in not merging counts involving multiple thefts involving the same victim, because when the defendant took money from a victim the offense of theft by deception was completed. When the defendant later took more money from the same victim, the defendant committed yet another theft by deception. Arnold v. State, 293 Ga. App. 395, 667 S.E.2d 167 (2008).

After the defendant was convicted on 52 counts related to the defendant's theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant's convictions for theft by conversion and theft by deception into the defendant's convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant's convictions for theft by taking merged into the defendant's convictions for theft by conversion and theft by deception; thus, the defendant's sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018).

Defenses.

- When a defendant is charged with the offense of being a common cheat and swindler by means of specific false representations, which the defendant is alleged to have made, the fact that the party alleged to have been defrauded did not exercise reasonable diligence in preventing the fraud affords no defense to the accused. Suggs v. State, 69 Ga. App. 383, 25 S.E.2d 532 (1943) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Any lack of diligence by the victims in failing to obtain a title examination of the proposed collateral offered by the defendant as part of defendant's scheme was not a defense to the charge of theft by deception. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

Restitution and repentance is no bar to prosecution.

- Offense of obtaining money in goods of another by using any deceitful means or artful practice is complete as soon as the owner is thus deprived of property, and subsequent repentance and restitution on the part of the wrongdoer will constitute no bar to a prosecution of the wrongdoer. Green v. State, 52 Ga. App. 18, 182 S.E. 74 (1935) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Other inducements causing owner to part with property.

- Deceitful means and artful practice by which an indictment charges the victim was defrauded and cheated need not be the sole inducement which caused the victim to part with property. Proof that the means and practice were relied upon and constituted in part such inducement will authorize a conviction, though there may have been other contributing inducements. Suggs v. State, 69 Ga. App. 383, 25 S.E.2d 532 (1943) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Second prosecution for theft by receiving not barred by double jeopardy.

- Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding approximately $300,000 worth of jewelry items found in a toolbox located at the defendant's residence upon an eviction, which were the subject of a second theft prosecution involving jewelry the defendant had stolen, the second prosecution regarding those items was not barred on double jeopardy grounds. White v. State, 284 Ga. App. 805, 644 S.E.2d 903, cert. denied, No. S07C1243, 2007 Ga. LEXIS 564 (Ga. 2007).

Similar transaction notice not required.

- In a defendant's prosecution for theft by deception under O.C.G.A. § 16-8-3 for a $600 ATM withdrawal from the victim's account, the state was not required to give similar transaction notice under Ga. Unif. Super. Ct. R. 31.1 and 31.3 as to a $200 ATM withdrawal and check theft because that conduct was evidence of the entire res gestae of the crime and those incidents were part of a single transaction. Parks v. State, 294 Ga. App. 646, 669 S.E.2d 684 (2008).

Cited in Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973); Partain v. State, 129 Ga. App. 213, 199 S.E.2d 549 (1973); Andrews v. State, 130 Ga. App. 2, 202 S.E.2d 246 (1973); Dunphy v. State, 131 Ga. App. 615, 206 S.E.2d 524 (1974); Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 220 S.E.2d 707 (1975); Taylor v. State, 136 Ga. App. 317, 221 S.E.2d 224 (1975); Roberts v. State, 137 Ga. App. 208, 223 S.E.2d 208 (1976); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473 (1976); Finley v. State, 139 Ga. App. 495, 229 S.E.2d 6 (1976); Croy v. Skinner, 410 F. Supp. 117 (N.D. Ga. 1976); Flinchum v. State, 141 Ga. App. 59, 232 S.E.2d 396 (1977); Eubanks v. State, 141 Ga. App. 569, 234 S.E.2d 95 (1977); Eubanks v. State, 144 Ga. App. 152, 241 S.E.2d 6 (1977); State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977); Perdue v. State, 147 Ga. App. 648, 249 S.E.2d 657 (1978); Conroy v. State, 155 Ga. App. 576, 271 S.E.2d 726 (1980); Change v. State, 156 Ga. App. 316, 274 S.E.2d 711 (1980); Hancock v. State, 158 Ga. App. 829, 282 S.E.2d 401 (1981); McNeil v. State, 159 Ga. App. 441, 283 S.E.2d 658 (1981); Davidson v. American Fitness Ctrs., Inc., 171 Ga. App. 691, 320 S.E.2d 824 (1984); Pelligrini v. State, 174 Ga. App. 84, 329 S.E.2d 186 (1985); Smith v. State, 174 Ga. App. 744, 331 S.E.2d 91 (1985); Holt v. State, 184 Ga. App. 664, 362 S.E.2d 464 (1987); Kimble v. State, 209 Ga. App. 36, 432 S.E.2d 636 (1993); State v. Schuman, 212 Ga. App. 231, 441 S.E.2d 466 (1994); Ragsdale v. South Fulton Mach. Works, Inc. (In re Whitacre Sunbelt, Inc.), 211 Bankr. 411 (Bankr. N.D. Ga. 1997); Elder v. State, 230 Ga. App. 122, 495 S.E.2d 596 (1998); Markowitz v. Wieland, 243 Ga. App. 151, 532 S.E.2d 705 (2000); Morrison v. State, 248 Ga. App. 785, 546 S.E.2d 312 (2001); First Data POS, Inc. v. Willis, 273 Ga. 792, 546 S.E.2d 781 (2001); Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 585 S.E.2d 643 (2003); Faillace v. Columbus Bank & Trust Co., 269 Ga. App. 866, 605 S.E.2d 450 (2004); Patterson v. State, 289 Ga. App. 663, 658 S.E.2d 210 (2008); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009); Ledford v. Peeples, 568 F.3d 1258 (11th Cir. 2009); Summit Auto. Group, LLC v. Clark Kia Motors Ame., Inc., 298 Ga. App. 875, 681 S.E.2d 681 (2009); McKissick v. S. O. A., Inc., 299 Ga. App. 772, 684 S.E.2d 24 (2009).

Larceny After Trust

Conversion of property entrusted to another.

- Where one entrusted with money by another fraudulently converts it to that person's own use, the person is guilty of larceny after trust, though he may have fraudulently induced the delegation of the trust with intent to so convert the money. Cole v. State, 95 Ga. App. 129, 97 S.E.2d 383 (1957) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

If a person, fraudulently intending to get possession of the money of another and appropriate the money to the person's own use, by false representations induces the owner to deliver the money to the person for the purpose of being applied for the owner's use or benefit, and then appropriates the money in pursuance of the original intent, the person is guilty of both larceny after trust delegated and simple larceny, and may be prosecuted for, and convicted of, either offense. Cordovano v. State, 61 Ga. App. 590, 7 S.E.2d 45 (1940); Cole v. State, 95 Ga. App. 129, 97 S.E.2d 383 (1957) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

When one voluntarily obtains money from another to be entrusted to that person for the use of the owner and the person violates the entrustment and fails to return the money, the person is guilty of larceny after trust. Cole v. State, 95 Ga. App. 129, 97 S.E.2d 383 (1957) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Contracts to Perform Services

Prima-facie case.

- To make out a prima-facie case the state must prove, among other things, a definite contract that the defendant failed to perform the services so contracted for, without good and sufficient cause and that defendant failed to return the money so advanced, with interest thereon, at the time said labor was to be performed, without good and sufficient cause, and all to the loss and damage to the hirer. Banton v. State, 57 Ga. App. 173, 194 S.E. 827 (1938) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Fraudulent conduct of defendant is gist of crime, not merely failure to perform contract. Bullard v. State, 60 Ga. App. 33, 2 S.E.2d 725 (1939); Broddus v. State, 65 Ga. App. 27, 14 S.E.2d 607 (1941) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Dispute as to amount due after services perfomed a civil, not criminal, matter.

- Trial court's findings in favor of a customer on the customer's counterclaim for malicious prosecution in a contractor's breach of contract and trover claim were upheld as the evidence established that the contractor had signed a sworn affidavit stating that the customer committed criminal fraud by not paying for an installed fence on the customer's property and refused to pay when the amount due was merely in dispute and the customer had, in fact, tendered a check for a portion of the amount due indicating that the remaining balance was in dispute. The fact that the contractor's execution of those false statements had consequences not intended, namely that the customer spent two nights in jail, was insufficient to absolve the contractor's liability for making the statements. Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).

Sufficiency of indictment.

- An indictment based on a failure to repay an advance on a contract should allege a definite contract, for a definite length of time, for a definite consideration, in order to enable the accused to defend against the charge. Bullard v. State, 60 Ga. App. 33, 2 S.E.2d 725 (1939) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

An indictment must allege that the failure to repay any advances made was without good and sufficient cause. Bullard v. State, 60 Ga. App. 33, 2 S.E.2d 725 (1939) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Sufficiency of complaint.

- Trial court erred by dismissing the plaintiff's complaint for failure to state a claim because the plaintiff pled viable claims for fraud, negligent misrepresentation, and civil racketeering based on the defendant filing a medical lien seeking full chargemaster rate or sticker price of the defendant's medical procedures, which did not represent a reasonable charge for the treatment received with the intent to collect more than a reasonable charge for the services rendered to the plaintiff. Clouthier v. Medical Center of Central Georgia, Inc., 351 Ga. App. 883, 833 S.E.2d 584 (2019).

Insufficient contractual allegations.

- When the contract alleged does not specify any terms other than to perform services as a sharecropper, such allegation is too indefinite as to the terms of the contract, the amount and kind of labor to be performed, the prices to be paid therefor, or any obligations assumed by the parties. Bullard v. State, 60 Ga. App. 33, 2 S.E.2d 725 (1939) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Defendant's theft by deception conviction, based upon a promise to provide brokerage services, was reversed on appeal as the state, which elected to base the state's accusation on a promise for brokerage services, failed to show any consideration for those services; as a result, no brokerage contract existed, and absent such, no theft by deception based upon a promise of brokerage services resulted. Campbell v. State, 286 Ga. App. 72, 648 S.E.2d 684 (2007).

Sufficiency of proof.

- Mere proof that the defendant failed to carry out the contract does not give rise to a presumption that defendant did so without good and sufficient cause nor is such an essential element supplied by statements of the hirer that defendant knew of no good reason why the laborer did not comply with the contract. Banton v. State, 57 Ga. App. 173, 194 S.E. 827 (1938) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Evidence presented during a hearing held to determine if the defendant's probation should be revoked did not show that the defendant did not intend to fulfill the terms of the defendant's agreement to locate a car for a buyer, or that the defendant had a fraudulent intent when the defendant wrote a post-dated check that was dishonored when the buyer presented the check for payment; the appellate court reversed the trial court's judgment finding that the defendant committed theft by deception and revoking the defendant's probation. Young v. State, 265 Ga. App. 425, 594 S.E.2d 667 (2004).

Deceitful Representation of Existing Fact or Past Event

Scope of deception.

- "Any deceitful means or artful practice" may embrace either false and fraudulent representations, or other deceitful and fraudulent conduct which cheats and defrauds the prosecutor. Ray v. State, 165 Ga. App. 89, 299 S.E.2d 584 (1983).

Deceit must refer to present or past event and not to future promise. Harris v. State, 141 Ga. App. 213, 233 S.E.2d 21 (1977).

Default on a promise to pay for goods in the future cannot be the basis of theft by deception because the representation must refer to a presently existing fact. Harris v. State, 141 Ga. App. 213, 233 S.E.2d 21 (1977).

Statement that the accused intended thereafter to do a particular thing, made at the time of and in connection with certain other statements as to a past fact, shown to have been false, does not remove from the accused the consequences which the law attaches to false representations made with intent to deceive, and by which one is defrauded and cheated. Harris v. State, 141 Ga. App. 213, 233 S.E.2d 21 (1977).

Representation by one that the person has title to a certain automobile, made for the purpose of inducing another to purchase it, if false within the knowledge of the person who makes the representation, is within the statute against cheating and swindling. Diamond v. State, 52 Ga. App. 184, 182 S.E. 813 (1935) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

False promise of future performance.

- As the language embodied within former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3(b)(1)) contemplated a deceitful representation as to an existing fact or past event, a false promise of future performance cannot be grounds for theft by deception prosecution. Croy v. State, 133 Ga. App. 244, 211 S.E.2d 183 (1974).

Promise of future performance cannot serve as the basis of a theft by deception prosecution. An essential element of the offense of theft by deception is that the false representation must bear upon an existing fact or past event. Elliott v. State, 149 Ga. App. 579, 254 S.E.2d 900 (1979).

Representations that the defendant was getting a loan and would pay for the goods when the defendant received the proceeds pertained to the future and, even if false and fraudulent, cannot be the basis of a prosecution for cheating and swindling. Elliott v. State, 149 Ga. App. 579, 254 S.E.2d 900 (1979).

Conviction under O.C.G.A. § 16-8-3(b)(1) is authorized only when there is a deceitful misrepresentation regarding "an existing fact or past event," and a false promise of future performance cannot be the basis for a conviction. Robinson v. State, 198 Ga. App. 431, 401 S.E.2d 621 (1991).

In this malicious prosecution action, probable cause existed for the warrant because the customer's written statement, along with the appliance repair company's invoice confirming the customer's story that the refrigerator was not repaired, gave the sergeant probable cause for the misdemeanor charge of theft by deception under Georgia law. Davis v. Lang, F.3d (11th Cir. Aug. 30, 2017)(Unpublished).

In this malicious prosecution action, probable cause existed for the warrant because the customer's written statement, along with the appliance repair company's invoice confirming the customer's story that the refrigerator was not repaired, gave the sergeant probable cause for the misdemeanor charge of theft by deception under Georgia law. Davis v. Lang, F.3d (11th Cir. Aug. 30, 2017)(Unpublished).

Future promise to pay.

- Defendant did not commit theft by deception under O.C.G.A. § 16-8-3 by failing to pay for groceries the defendant received upon a promise to pay the following Friday as the defendant made no false representation as to an existing fact. Mathis v. State, 161 Ga. App. 251, 288 S.E.2d 317 (1982).

Failure to inform of lien.

- Trial court properly denied the defendant's motion for directed verdict as to seven counts of taking by theft as the state proved the defendant committed theft by deception regarding construction agreement and the theft by taking statute was broad enough to encompass theft by deception; theft by deception required a person to intentionally create or confirm an existing fact or past event which is false and which the accused knew or believed to be false and the defendant did so by creating the impression that the couple was paying for a house on which there was no construction lien when the defendant knew that was not true. McMahon v. State, 258 Ga. App. 512, 574 S.E.2d 548 (2002).

Coroner's billing for investigations not performed.

- In the defendant's trial for violating the defendant's oath of office as coroner and theft by deception, O.C.G.A. §§ 16-10-1 and16-8-3(a), repsectively, there was no fatal variance between the indictment, which alleged the defendant had billed the county for "pronouncing the death of" nursing home patients, and the proof that the defendant billed the county for conducting investigations into the deaths of the same named patients. Fortner v. State, 350 Ga. App. 226, 828 S.E.2d 434 (2019).

Failure to Correct False Impression

Proving failure to correct false impression.

- To prove paragraph (b)(2) of O.C.G.A. § 16-8-3, the prosecution must prove everything the prosecution must prove in paragraph (b)(1) plus the additional element of defendant's "failure to correct" the false impression the defendant created. Sassoon v. State, 138 Ga. App. 172, 225 S.E.2d 732 (1976).

Properly charging creating false impression.

- Proper charge under former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3) should explain that creating a false impression does not necessarily require a false statement; but on the other hand, the character of the person to whom the impression is directed is critical. Vickers v. State, 124 Ga. App. 752, 186 S.E.2d 157 (1971).

Application

No probable cause to issue arrest warrant for theft by deception.

- As a contractor's dispute with a homeowner over a bill for building a fence was a civil matter, and the Georgia Constitution prohibits imprisonment for debt, a magistrate lacked probable cause to issue a warrant to arrest the homeowner for theft by deception. Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).

Evidence did not establish theft by deception.

- There was no merit in defendants' argument that the evidence in a land sale transaction established the crime of theft by deception, rather than theft by conversion. The criminal act that occurred in the transaction was not the obtaining of the money from the victims, since the victims got exactly what was represented to them and defendants kept none of the money for themselves. Instead, the crime occurred when defendants having obtained the funds for a "specified application," used the victims' money to purchase shares in the property for themselves, thereby converting the funds from their intended and agreed-upon application to defendants' own use. Cochran v. State, 204 Ga. App. 602, 420 S.E.2d 32, cert. denied, 204 Ga. App. 921, 420 S.E.2d 32 (1992).

Theft by deception conviction was reversed, since defendant, who owned an auto dealership, had no intent to write bad checks to vehicle wholesaler, but simply lacked the ability to fund them when presented for payment; routine had been established between the two parties, and both had an understanding that defendant would eventually make good on the debts. Ellerbee v. State, 256 Ga. App. 848, 569 S.E.2d 902 (2002).

District court did not err by granting the company summary judgment on Georgia RICO claim because the company produced three sworn statements asserting that the two letters demanding payment and threatening the probationer's arrest were sent because of a clerical error and not with the intent to deceive the probationer into paying money the probationer did not owe. The probationer failed to allege or present any evidence that an employee of the company acted with specific intent to commit theft by deception. McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236 (11th Cir. 2013).

Employee's civil claim against an employer for failure to pay agreed-upon severance under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., based on theft by deception, O.C.G.A. § 16-8-3(a), failed because there was no evidence that the employee relied on the allegedly inadequate severance checks sent to the employee or that the employee was actually deceived by the checks. Vernon v. Assurance Forensic Accounting, LLC, 333 Ga. App. 377, 774 S.E.2d 197 (2015), cert. denied, No. S15C1837, 2015 Ga. LEXIS 864 (Ga. 2015).

Submitting invoices to state with large markups.

- When the state contends the defendant committed theft by deception when the defendant submitted false invoices to the General Assembly, but the invoices contained a statement of charges for services rendered and taken as a whole and compared with the billings to the defendant there was a very large markup, that is not a false statement, and there was no theft by taking under O.C.G.A. §§ 16-8-2 and16-8-3. Gordon v. State, 257 Ga. 335, 359 S.E.2d 634 (1987).

Destruction of bills disclosing unit prices.

- When the state contends that the defendant's destruction of order envelopes from suppliers which disclosed unit prices was an effort to conceal the alleged falsity of the invoices, it was held that the discarding of the bills received by the defendant did not constitute preventing another from acquiring information contemplated by O.C.G.A. § 16-8-3(b)(3). Gordon v. State, 257 Ga. 335, 359 S.E.2d 634 (1987).

Evidence of other transactions or crimes is admissible as tending to show fraudulent intent and scheme on the part of the accused to obtain the property of others without paying for the property, and as warranting an inference that the transaction in the case on trial was made in pursuance of the same general purpose. Thompson v. State, 67 Ga. App. 240, 19 S.E.2d 777, cert. denied, 317 U.S. 667, 63 S. Ct. 72, 87 L. Ed. 536 (1942) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Any lack of diligence by the victims in failing to obtain a title examination of the proposed collateral offered by the defendant as part of defendant's scheme was not a defense to the charge of theft by deception. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

Altering water meter to defraud city.

- Evidence that the defendant conspired with a named individual, operator of a laundry, to defraud the city out of a large quantity of water by altering a water meter on the laundry premises for consideration authorized a conviction for cheating and swindling. Thompson v. State, 67 Ga. App. 240, 19 S.E.2d 777, cert. denied, 317 U.S. 667, 63 S. Ct. 72, 87 L. Ed. 536 (1942) (decided under former Code 1933, §§ 26-3918, 26-7408, 26-7409, 26-7410).

Allegations of bid-rigging scheme sufficient.

- State adequately alleged the predicate act of theft by deception when the state presented elaborate details of an anticompetitive bid-rigging scheme which injured Georgia school districts by causing the districts to pay anticompetitive prices for milk. Georgia ex rel. Bowers v. Dairymen, Inc., 813 F. Supp. 1580 (S.D. Ga. 1991).

No evidence services provided worth less than amount paid.

- Court of appeals erred by holding that the defendant's felony conviction for theft by deception, based on a failure to fully perform, could stand absent proof of the value of the work performed by the defendant; the conviction as to one count was not supported by evidence as the state failed to show that the services provided were worth less than the amount the defendant was paid. Stratacos v. State, 293 Ga. 401, 748 S.E.2d 828 (2013).

Elderly as victim of theft by deception.

- Evidence that the defendant told an 82-year-old victim that the defendant was the victim's grandson and needed bail money, thereby obtaining $6,500, was sufficient to support the defendant's conviction for theft by deception. Akintoye v. State, 340 Ga. App. 777, 798 S.E.2d 720 (2017).

Evidence sufficient to support conviction.

- See Davis v. State, 180 Ga. App. 299, 349 S.E.2d 29 (1986); Hammitt v. State, 183 Ga. App. 382, 359 S.E.2d 4 (1987); Harrell v. State, 192 Ga. App. 876, 386 S.E.2d 676, cert. denied, 192 Ga. App. 902, 386 S.E.2d 676 (1989); Ramey v. State, 239 Ga. App. 620, 521 S.E.2d 663 (1999).

Paralegal guilty of theft by deception.

- Since the defendant worked as an independent paralegal for several attorneys, the evidence was sufficient to convict the defendant of three counts of theft by deception against the first client because the first client wrote two checks totaling $25,000 to the defendant's company based on the defendant's false statement that the computer forensic expert charged $25,000 for the expert's services, when the expert actually charged only $8,500; and the defendant knowingly made a false statement in order to obtain the $5,000 check from the first client as the attorney that the defendant was working for testified that the attorney never asked the first client for the additional funds, nor did the attorney ask the defendant to do so. Pruitt v. State, 349 Ga. App. 101, 825 S.E.2d 490 (2019).

Since the defendant worked as an independent paralegal for several attorneys, the evidence was sufficient to convict the defendant of two counts of theft by deception against the second client because the second client made payments based on the defendant's statement that additional money was needed to compensate the defendant for 60 hours of additional legal research on a new law that might help the appeal of the second client's husband, but the attorney that the defendant was working for did not remember authorizing the defendant to perform the additional research, nor was the attorney aware of any purported new law that the defendant allegedly researched; and the defendant only performed 12-13 hours of additional research. Pruitt v. State, 349 Ga. App. 101, 825 S.E.2d 490 (2019).

Deception by use of checks.

- Evidence that defendant's accomplice deposited checks from defendant's closed account and then withdrew cash and defendant's admission, later withdrawn, that defendant knew there was no money in the closed account, that defendant gave checks on that account to defendant's accomplice, knowing that the accomplice was going to deposit them, that defendant and the accomplice planned to split the cash the accomplice received, and that defendant drove the accomplice to the bank to deposit some of the checks, was sufficient to support defendant's conviction for theft by deception. Westbrooks v. State, 263 Ga. App. 566, 588 S.E.2d 335 (2003).

With regard to a defendant's convictions on three counts of deposit account fraud and two counts of theft by deception, there was sufficient circumstantial evidence to support the convictions on two counts of deposit account fraud and both counts of theft by deception based on the defendant delivering two checks to two banks and receiving funds in exchange for the checks, which were subsequently dishonored; the defendant's failure to repay the funds as demanded; and the defendant's implausible story that the checks were from business partners whom the defendant had never met from another country. One count of deposit account fraud regarding a second check presented to one of the banks in the amount of $301,392 was not supported by the evidence as the prosecution failed to present any evidence that the defendant received anything of value in return for the check since the check was dishonored immediately and the defendant received no funds for that check. Vadde v. State, 296 Ga. App. 405, 674 S.E.2d 323 (2009), cert. denied, No. S09C1087, 2009 Ga. LEXIS 348 (Ga. 2009); cert. denied, 558 U.S. 1117, 130 S. Ct. 1051, 175 L. Ed. 2d 892 (2010); reh'g denied, 559 U.S. 998, 130 S. Ct. 1756, 176 L. Ed. 2d 224 (2010).

Sufficient evidence supported the defendant's convictions for two counts of theft by deception based on the defendant withdrawing the contents of two bank accounts after depositing checks from other banks into the accounts that were eventually dishonored because the dishonored checks were properly admitted into evidence without testimony from the payor banks as the checks became the business records of the bank from which funds were withdrawn since there was testimony that the bank received, relied upon, and retained the checks in the regular course of the bank's business as well as testimony from the bank establishing a foundation for admitting the checks. Ross v. State, 298 Ga. App. 525, 680 S.E.2d 435 (2009).

Deceiving pawn shops on ownership of pawned goods.

- Evidence was sufficient to support defendant's conviction of theft by deception because defendant represented defendant as the legal owner of stolen tools, defendant did not disclose to pawn shops that defendant had stolen the tools, and, relying on those misrepresentation, the pawn shops purchased the items. Drake v. State, 274 Ga. App. 882, 619 S.E.2d 380 (2005).

Evidence was sufficient to find defendant guilty of theft by deception as defendant, a customer, had falsely charged two drills to a construction company, the customer's vehicle was then traced to a woman located with defendant, and defendant gave a written statement admitting to purchasing the drills and charging them to the construction company. Tyler v. State, 275 Ga. App. 115, 619 S.E.2d 804 (2005).

Deception in representing oneself as an attorney.

- Sufficient evidence existed to support defendant's convictions for theft by deceitful means, in violation of O.C.G.A. § 16-8-3, because defendant held the defendant out as an attorney and took title and possession of an elderly person's vehicle in payment for the legal services rendered; the state was not obligated to prove the value of the vehicle for purposes of imposition of a felony sentence under O.C.G.A. § 16-8-12(a)(5)(A), as the motor vehicle was valued at more than $100.00. Marks v. State, 280 Ga. 70, 623 S.E.2d 504 (2005).

Deception in acquiring loan.

- Defendant's filling out of a loan application with an Internet lender for the purchase of a vehicle by falsely using the defendant's father's social security number, which caused the lender to issue a check that was used for the payment of the vehicle, provided sufficient evidence for a conviction under O.C.G.A. § 16-8-3 even though the lender stopped payment prior to purchase; the document received by the defendant from the lender was a "check" within the definition under O.C.G.A. § 11-3-104(f), as it referenced itself in that manner and was drawn on a bank. Scott v. State, 277 Ga. App. 876, 627 S.E.2d 904 (2006).

Deception by misappropriation of funds.

- There was sufficient evidence to support the defendant's convictions of theft by deception; records showed that the defendant, a business manager, had misappropriated the proceeds of a fictitious loan to the defendant's own use and had satisfied a loan to the defendant by crediting payments from another account. Ruppert v. State, 284 Ga. App. 456, 643 S.E.2d 892 (2007).

There was sufficient evidence supporting a conviction for theft by deception under O.C.G.A. § 16-8-3. The defendant drove an accomplice to a store, got a slipcover, obtained the sticker necessary to return the slipcover for a refund, and transferred the slipcover to the accomplice, directing the accomplice to present the slipcover for a refund; therefore, the defendant directly committed acts in furtherance of the crime and aided in the crime's commission under O.C.G.A. § 16-2-20. Bruster v. State, 291 Ga. App. 490, 662 S.E.2d 265 (2008).

Evidence was sufficient to convict the defendant of theft by deception in violation of O.C.G.A. § 16-8-3(a) because the defendant told the buyer of a stolen trailer that the title was good and that the defendant's spouse had owned the trailer for two years, even though the defendant knew that the spouse had recently taken the trailer from another person's home. Green v. State, 301 Ga. App. 866, 689 S.E.2d 132 (2010).

Evidence was sufficient to support the defendant's conviction for theft by deception in violation of O.C.G.A. § 16-8-3(a) because the evidence showed that at a motel the defendant obtained payment for a stolen laptop after representing the laptop to be marketable and not stolen. Fields v. State, 310 Ga. App. 455, 714 S.E.2d 45 (2011).

Sufficient evidence supported the defendant's theft by deception convictions as there was no requirement that the state prove the value of the work done; the state presented adequate proof that there was a contract price, that the defendant received money under the terms of the contract, that the defendant did not intend to perform all of the contracted services, and that the defendant did not return the money. Stratacos v. State, 312 Ga. App. 783, 720 S.E.2d 256 (2011).

Deception in representation of animal shelter.

- Evidence was sufficient to convict the defendant of felony theft by deception, instead of misdemeanor theft, as a party because the defendant unlawfully obtained $1,500 from 25 listed individuals by creating a false impression that the animal shelter was a no-kill shelter and that payment of funds would ensure that the listed individual's animal would not be euthanized; and all sponsorship money, whether in the form of cash or other payment, was directed to and controlled by the defendant, who retained sole discretion to determine the money's direction and use. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).

Alleging authority to rent property sufficient for conviction.

- Conviction for theft by deception was supported by evidence that the defendant deceived tenants by claiming the defendant had authority to rent premises when the defendant did not. Harris v. State, 324 Ga. App. 411, 750 S.E.2d 721 (2013).

Offense involves dishonesty or false statement and admissible in child molestation trial.

- Defendant's prior convictions for felony forgery, O.C.G.A. § 16-9-1(a), misdemeanor theft by deception, O.C.G.A. § 16-8-3(a), and misdemeanor giving a false name to a law enforcement officer, O.C.G.A. § 16-10-25, were all less than 10 years old and involved dishonesty or false statements. Therefore, those convictions were admissible in the defendant's child molestation trial under former O.C.G.A. § 24-9-84.1(b) (see now O.C.G.A. § 24-6-609). Damerow v. State, 310 Ga. App. 530, 714 S.E.2d 82 (2011).

Inducing victims to buy automobiles which defendant never delivered.

- Evidence that a defendant, a car dealer, obtained more than $500 from each victim by intentionally creating the false impression that the defendant could sell the victim a vehicle at a discounted price, but never delivered any vehicles, was sufficient to establish that the defendant used deceitful means and artful practice in order to induce the victims to part with the victims' money in violation of O.C.G.A. § 16-8-3. Arnold v. State, 293 Ga. App. 395, 667 S.E.2d 167 (2008).

Evidence that investors lost money in defendant's corporation was insufficient to prove that defendant "obtained property" of another as required by O.C.G.A. § 16-8-3(a), where there was no evidence that defendant personally obtained or used the funds or that defendant received any benefit from any of the funds invested. Robinson v. State, 198 Ga. App. 431, 401 S.E.2d 621 (1991).

Fraud in stock purchase contract.

- In an action for a RICO violation, plaintiffs presented evidence to create a material issue of fact as to whether defendant engaged in predicate acts of criminal fraud, i.e., theft by deception, arising from defendant's purchase of plaintiff's stock in a software development company. Willis v. First Data Pos, Inc., 245 Ga. App. 121, 536 S.E.2d 198 (2000).

Decline in value of stock not a theft.

- Taxpayers' complaint for a refund was dismissed as the taxpayers were not entitled to a theft loss deduction under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock after the taxpayer husband exercised his stock options because they did not show that they were victims of either a theft by taking, theft by deception, theft by conversion, or theft of services under O.C.G.A. § 16-8-2, O.C.G.A. § 16-8-3, O.C.G.A. § 16-8-4, or O.C.G.A. § 16-8-5. The taxpayers were only entitled to capital loss deductions under 26 U.S.C. § 2511. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).

No theft by deception in financier's actions.

- After plaintiff limited liability company (LLC1), who sold its interest in another limited liability company (LLC2) to the other members in LLC2 (buyers), and alleged that the buyers defrauded LLC1's members to sign a deed conveying real property from a related leasing company to LLC2 and that the defendant financier, who financed the buyers, aided and abetted a breach of the buyers' fiduciary duty under O.C.G.A. § 14-11-305(1) in connection with that conveyance, the aiding and abetting claim failed because the conveyance had been required for LLC2 to obtain a loan from a bank, and absent the conveyance to enable LLC2 to secure the debt to the bank, the representations of the selling members in the loan application would have been false, subjecting the selling members to liability for bank fraud under 18 U.S.C. § 1344 or theft by deception under O.C.G.A. § 16-8-3. Ledford v. Peeples, 657 F.3d 1222 (11th Cir. 2011).

Sale of non-existent insurance.

- While the illegal sale of insurance is not in and of itself a basis for a racketeer influenced and corrupt organization (RICO) action absent further evidence of fraud rising to the level of theft by deception, the repeated sale to unsuspecting consumers of non-existent insurance was the very essence of such fraud, and was exactly the type of criminally fraudulent activity masquerading as "business" that RICO was designed to address. Speir v. Krieger, 235 Ga. App. 392, 509 S.E.2d 684 (1998).

Jury Charges

Charging provisions for which there is no evidence is improper.

- Charging provisions for which there is no evidence can only serve to confuse the jury and allow it to believe that defendant could be found guilty for failing to honor a promise. A proper charge should explain that creating a false impression does not necessarily require a false statement but, on the other hand, the character of the person to whom the impression is directed is critical. Vickers v. State, 124 Ga. App. 752, 186 S.E.2d 157 (1971).

Claim of right defense instruction not available.

- Trial court properly did not instruct the jury, sua sponte under O.C.G.A. § 5-5-24(c), on a claim of right defense under O.C.G.A. § 16-8-10 to theft by deception charges under O.C.G.A. § 16-8-3 as a sole defense as the defendant did not object to the instructions given, and a claim of right defense was not warranted as the sole defense as the defendant testified about the reasons the defendant was prevented from completing the jobs, and that the defendant had composed a list with the defendant's pastor of how much work was done on each job, and how much the defendant owed the people. Stratacos v. State, 312 Ga. App. 783, 720 S.E.2d 256 (2011).

Punishment

Whether offense is misdemeanor or felony is material only as to sentencing.

- Whether the offense of theft by deception constitutes a misdemeanor or a felony is not material to the defense, and is only material after conviction for the purpose of sentencing under the provisions of former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-12). Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976).

Conviction for theft by taking.

- One may be indicted and convicted under former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) for theft by taking if the evidence supports a finding of guilt under former Code 1933, § 26-1803 (see now O.C.G.A. § 16-8-3) for theft by deception. Elliott v. State, 149 Ga. App. 579, 254 S.E.2d 900 (1979).

Language "regardless of the manner in which said property is taken or appropriated" in O.C.G.A. § 16-8-2 renders that section sufficiently broad to encompass thefts or larcenies perpetrated by deception as prohibited by O.C.G.A. § 16-8-3. Ray v. State, 165 Ga. App. 89, 299 S.E.2d 584 (1983).

Defendant's rights against double jeopardy are not infringed upon by prosecutions and subsequent convictions for both theft by deception and theft by taking. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).

When the evidence at trial was sufficient to establish the crime of theft by taking, and the evidence also may have shown theft by deception, the phrase "regardless of the manner in which the property is taken or appropriated" rendered the theft by taking statute sufficiently broad to encompass thefts perpetrated by deception. Thus, the evidence was sufficient to authorize a conviction on that charge. Lundy v. State, 195 Ga. App. 682, 394 S.E.2d 559 (1990).

Sentence not excessive.

- Defendant's sentence for theft by deception for taking $2,611.29 from an elderly victim in a roofing scheme was within the statutory limits, and thus the defendant's sentence of 10 years, with five years probated, was not so disproportionate as to shock the conscience. Jones v. State, 325 Ga. App. 845, 755 S.E.2d 238 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

- 32 Am. Jur. 2d, False Pretenses, §§ 3, 11, 27 et seq.

C.J.S.

- 35 C.J.S., False Pretenses, § 1 et seq. 52B C.J.S., Larceny, §§ 1, 60, 61.

ALR.

- Obtaining money for goods not intended to be delivered as false pretense, 17 A.L.R. 199.

May offense of obtaining money or property by false pretenses or confidence game be predicated on obtaining loan or renewal thereof, 52 A.L.R. 1167.

Larceny or embezzlement by one spouse of other's property, 55 A.L.R. 558.

False representation in business transaction as within statute relating to "confidence game," 56 A.L.R. 727.

False statement as to matter of record as false pretense within criminal statute, 56 A.L.R. 1217.

Appropriation or removal without payment of property delivered in expectation of immediate cash payment, as criminal offense, 83 A.L.R. 441.

Evidence of acquisition or possession of money, source of which is not traced, as admissible against defendant in criminal case, 123 A.L.R. 119; 91 A.L.R.2d 1046.

Offense of obtaining property by false pretenses predicated upon transaction involving conditional sale, 134 A.L.R. 874.

Criminal charge predicated upon fraudulently obtaining a check, note, etc., or signature thereon, from the person executing the same, 141 A.L.R. 210.

Criminal offense of obtaining property by false pretenses predicated upon transactions incident to raising of funds for benevolent or charitable purpose, 145 A.L.R. 302.

"Defalcation" within provisions of Bankruptcy Act excepting from discharge debts of fiduciary or officer, 163 A.L.R. 1008.

Obtaining payment by debtor on valid indebtedness by false representation as criminal false pretenses, 20 A.L.R.2d 1266.

False statement as to existing encumbrance on chattel in obtaining loan or credit as criminal false pretense, 53 A.L.R.2d 1215.

Evidence of acquisition or possession of money, source of which is not traced, as admissible against defendant in criminal case, 91 A.L.R.2d 1046.

Attempts to commit offenses of larceny by trick, confidence game, false pretenses, and the like, 6 A.L.R.3d 241.

Criminal liability of corporation for extortion, false pretenses, or similar offenses, 49 A.L.R.3d 820.

Application of "bad check" statute with respect to postdated checks, 52 A.L.R.3d 464.

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 A.L.R.3d 689.

Criminal liability for wrongfully obtaining unemployment benefits, 80 A.L.R.3d 1280.

Embezzlement, larceny, false pretenses, or allied criminal fraud by a partner, 82 A.L.R.3d 822.

Modern status of rule that crime of false pretenses cannot be predicated upon present intention not to comply with promise or statement as to future act, 19 A.L.R.4th 959.

What constitutes tax-deductible theft loss under 26 USCS sec. 165, 98 A.L.R. Fed. 229.

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